| W. Va. | Apr 5, 1884
It is unnecessary to consider all the errors assigned by the plaintiff. Two questions meet us at the threshhold demanding our consideration; if these be determined in favor of the plaintiff, all other questions discussed by her counsel become immaterial.
It is apparent that all the property mentioned in both of said deeds, was the property of the appellant. It is equally clear that the appellant and her husband, on June 23rd, 1866, intended to vest -the legal title to all of her estate in Wm. A. Quarrier to hold the same for her sole and separate use from the debts, control or liabilities of her husband, and that thenceforth he was-to have no interest in, or control over it, except in so far, as certain privileges were granted him by said deed, which we need not consider. The trustee Quar-rier was to hold the legal title for her sole use, and was bound to convey, and- could only convey, whenever, and to whom, and for such uses, and upon such trusts, as the appellant might request in writing, signed by herself and attested by one respectable witness.
It the deed to the said Quarrier was valid, then it becomes wholly immaterial whether the said deed of trust to Knight ■was executed by the appellant and her husband or not, provided only that she requested said Quarrier in a writing signed by her, and attested by one respectable witness, to execute the said deed of trust to secure said debt, and that in pursuance of such request he did execute the same, for in that case, as was held by this Court in Norvell v Hedrick, 21 W. Va. 523" court="W. Va." date_filed="1883-04-21" href="https://app.midpage.ai/document/norvell-v-hedrick-6592681?utm_source=webapp" opinion_id="6592681">21 W. Va. 523, the deed of trust to Knight by Quarrier, under said power to convey from appellant and her husband, would operate as a grant from themselves, and it would be wholly unnecessary for them to join said Quarrier in the execution of said deed of trust to Knight.
Was the deed of the 23d of June, 1866, a valid deed, and did it effectuate the intention of the grantors and vest the legal title to said lands in the said Quarrier, for the uses therein mentioned ? Being the real estate of the wife, does the certificate of her acknowledgment of this deed, show that all the requisites of the statute in that case made and provided, have been substantially complied with? .What are
The first cerifícate appended to the deed of the 23d of June, 1866, while good as to Alexander Laidley, was clearly insufficient as to his wife. The certificate of the acknowlment of said deed made by the appellant on the 27th day of August, 1873, shows that while she was being examined separate and apart from her husband the deed was fully explained to her, and that she declared she had willingly signed, sealed and delivered the same, and did not wish to retract it, but it does not show that she acknowledged it after it had been, fully explained to her, and when she was being examined privily and apart from her husband. Tor aught that appears she may have acknowledged it in the presence of her husband, and before she understood or was informed what was the meaning of the deed, or what''effect it would have upon the title to her lands. This whole question has been fully considered by this Court in the cases of McMullen v.
It follows therefore that the said Quarrier, by the execu-cution of the deed of trust to E. 13. Knight, at the written request of the appellant, conveyed to him no title to the two parcels of land therein mentioned. But as we have seen, that the appellant on the 12th day of January, 1875, was still the owner of said two parcels of land, it was competent for her and her husband on that day, to execute the said deed
Here the certificate is precisely like the certificate in McMullen v. Eagan, supra. The acknowledgment is made by the appellant and her husband jointly, and although it appears in the same certificate, that “ being examined privily and apart from her husband, and having the deed fully explained to her, she declared she had willing signed, sealed and delivered the same, and did not wish to retract it, yet it does not appear, that she acknowledged the same, while she was being examined privily and apart from her husband, and after the same had been fully explained to her, and for these reasons we are ot opinion that the said certificate of acknowledgment is also fatally defective, and that the said deed of trust of Knight is inoperative to convey to him the title of appellant to the two parcels of land therein mentioned. Wo are further of opinion that the decree of the circuit court of Kanawha county, rendered in this cause on the 7th day of April, 1882, is erroneous and must be reversed, with costs to the appellant.
And this Court now proceeding to render, such decree as the said circuit court ought to have rendered, it is adjudged, ordered and decreed, that the said deed of trust dated the 12th day of January, 1875, to E. B. Knight, trustee, to secure to Helen M. Burton, executrix of Edward C. Burton, deceased, the sum of one thousand and fifty dollars, is, as to the appellant, Dulce Rowena Laidley, inoperative and void, and that the injunction heretofore awarded to the appellant restraining and enjoining the said E. B.,Knight and Helen M. Burton, executrix of Edward C. Burton, from selling the said parcels in said deed of trust mentioned and described, be, and the same is hereby, made perpetual, and that the said Helen M. Burton, executrix as aforesaid, out of the assets of her testator in her hands to be administered do
REVERSED.